[Just Saying] Demonizing divorce and the mockery of our Constitution

Even the Supreme Court – the interpreter of our Constitution – had already stated that the constitutional provision that marriage, as an inviolable social institution, “was not meant to be a general prohibition on divorce.” (Manalo vs. Republic G.R. No. 221029 April 24, 2018)

Allow me to pick up on my previous article, “Let There Be Divorce” and explain why the adamant position of some of our senators is a mockery of our Constitution.

Marriage is not an ordinary contract. It is vested with public interest. And, as I said in my previous article, if one were married by a priest or a minister, marriage may also be governed by a religion’s doctrine, not only by state law. A priest plays a dual role – as a representative of his religion and an agent of the state. When he solemnizes a marriage, he gives consent to the marriage on behalf of his religion (or God), and he also does so on behalf of the state.

No doubt religion has contributed to the spiritual formation and upliftment of our people, and for that we should be very thankful. That said, our own history and the Constitution acknowledge that when religion and state affairs mix, conflicts arise, which jurisprudence has aptly termed “excessive entanglement.” Thus, one of the fundamental principles in the Constitution commands that there must be separation of church and state. 

Accordingly, when the state terminates a marriage through the courts, the church  is free not to recognize such civil termination in all its religious aspects. The state will not meddle in the religious content of a marriage. Neither will it interfere in religion’s ecclesiastical affairs.  

The church may even consider the ex-spouse as committing a sin, or defying a religious doctrine. But these are concerns of the church, not of the state. The state will respect that position, although there have been times when the state has accommodated practices in the name of religious freedom, even though they have actually crossed the line and “violated” a secular law, because of the exercise of their freedom of worship. 

For example in Estrada vs. Escritor (A.M. No. P-02-1651 August 4, 2003), the Supreme Court said that under the law, the two people who decided to live together as husband and wife, could have easily been removed from their government positions because of immorality, since both are still legally married though separated from their respective spouses.

However, since it was clearly shown that their union followed the strict tenets of their religion as members of the Jehovah’s Witnesses, and observed the rules of their faith, the court refused to impose the legal consequences of their acts – wary of unintentionally meddling in the beliefs of religion. Instead, it carved out an exception for Escritor, to accommodate the parties’ religious beliefs.

The same accommodation was extended by the Supreme Court in Ebralinag vs. Division Superintendent of School (G.R. No. 95770 December 29, 1995). It ruled that while the law requires respect for the flag, the refusal of students to salute the flag on the ground that their religion prohibited them from paying homage to something that is not their God, the students who were members of the Jehovah’s Witnesses cannot be expelled from their school.

In fact the implementing rules – not the law itself – of the government in compelling citizens to salute the flag against their conscience and religious practice was rendered unconstitutional. Not saluting the flag does not per se indicate disrespect.

In return, respect must be accorded by the church when the state decides that, in legislating divorce, it is providing a remedy – even on limited but serious grounds – to couples trapped in a non-functioning marriage, to give them a new lease on life and protect them from possible liability, for instance, from adultery,  concubinage, bigamy in case of remarriage, or from hurt and injury, in case of a violent marriage.

In other words, it is up to a church or religious congregation to consider divorced spouses as married within their own tenets or doctrines, and even make the proper corrective measures dictated by their beliefs. But the state is governed by the sovereign will of all its people, regardless of religious beliefs and affiliations, or whether or not they adhere to a particular religion.

Therefore, the state’s decision should not be demonized when it adopts a remedy for patently failed marriages, although secular in character and measure, especially if it does so for compelling reasons, such as to save the life of an abused spouse.

Other compelling grounds are repeated physical violence, grossly abusive conduct, mental and psychological torture, total abandonment, and attempt on the life of the other. The Supreme Court, in Quiogue vs. Quiogue (G.R. No. 203992 August 22, 2022) referring to a marriage’s miserable condition said that such “union should not be upheld solely for the sake of permanence because doing so will only destroy the very essence of marriage as an institution.” (Quiogue vs. Quiogue G.R. No. 203992 August 22, 2022)

It is also noteworthy to emphasize that the defense of the “battered woman syndrome” under the Violence Against Women and their Children law (R.A. 9262) absolves a woman from criminal liability, because it recognizes the prolonged agony to which she has been subjected, usually because she has been trapped in a marriage with her batterer.

The availability of divorce could not only prevent a violent ending to her marriage, but also preempt having the woman suffer such syndrome because she could have an early escape from such violent situation.

And so to all our senators who are opposed to divorce because of their religious belief, please take heed of what the Constitution commands: The separation of Church and State shall be inviolable. (Article II, Section 6). Such principle is unbreakable and sacred, subject to the “benevolent accommodations” as ruled by our Supreme Court.

And to all the legislators who are against divorce because they have very happy families or the majority of the Filipino people do not want it, please know – if you are still ignorant of it – that, as senators, you should not decide on the basis merely of what you think and feel, or how your families live, or whether or not you have personal experiences on the matter.

Legislation should be governed by the higher interest of justice and fairness, and the truth that in our country there are those who need divorce – not simply for separation’s sake – but because they want to be liberated from captivity, and be freed from the confines of a loveless union.

For a law that can be life-altering for others, giving them another shot at taking their lives back and starting anew, it is deeply disturbing, if not outright cruel, to deny the passage of such law, just because some senators have a different, personal view of marriage, and they silently thank their creator because they are fortunate enough not to be trapped in a dysfunctional union, unlike the “others.”

Such bases, I believe, mock the Constitution and the mandate of these legislators. – Rappler.com

Mel Sta. Maria is former dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.